WV cyberbullying bill could target protected speech

Proposed legislation in West Virginia would make it a crime to "harass" others …

If you're in West Virginia, you may want to watch what you say in the comments thread to this article. A bill introduced last week would expand the definition of harassment under the state's Computer Crime and Abuse Act, making it a misdemeanor punishable by a $500 fine or up to six months in jail to post false statements about another person in an online forum.

The legislation was originally sponsored by state senator Mike Green (D-Raleigh) last Monday, though without the "false statements" provision, which was added when the bill was reported out of the Judiciary Committee on Friday. As currently written, the bill would make it a crime to create a "webpage or posting on a newsgroup" containing "untrue statements about another person which are false and designed to entice or encourage other people to ridicule or perpetuate the untruth about that person."

A quick look at Cracked's recent list of eight "awesome cases of Internet vigilantism" makes it easy to see why lawmakers might be concerned with the power of the web to spur harassment. Once the online hordes have selected someone for a little rough justice, they can wreak havoc by dint of sheer numbers, even if each individual who jumps on the bandwagon only places a single phone call or writes a lone e-mail.

The statute's wording, however, seems to practically invite a First Amendment challenge. As with the other forms of online harassment defined in the computer crime act, false statements must be made "with the intent to harass or abuse another person" in order to be punishable. Conspicuously absent, however, is any requirement that the statements be made with the knowledge that they're false.

In the context of civil defamation law, the Supreme Court has held that public figures can only recover damages for false statements made with "actual malice"—meaning that the person making the statement either knew it was false, or acted with reckless disregard to its truth or falsehood. Even in the case of nonpublic figures, the Court held in Gertz v. Robert Welch, Inc. that false claims must at least be made negligently for an aggrieved party to recover any damages, and if punitive damages are to be awarded, then the full-blown "actual malice" standard must be met.

Larry Frankel, state legislative counsel for the American Civil Liberties Union, thinks the proposed legislation would be problematic even if it were limited to penalizing the spreading of deliberate falsehoods. "We know how to deal with people who knowingly and maliciously publish false statements that cause harm to people," says Frankel. "It's called civil lawsuits for defamation." Civil law leaves it to the party harmed by false speech to decide if it's worth launching litigation and to prove some sort of concrete injury. A criminal penalty leaves it to public officials to decide which falsehoods are worth pursuing, and brings the prospect of incarceration into the picture, which Frankel argues would chill online speech.

As noted above, Sen. Green's original bill did not contain the online forum language. Rather, its purpose was to create stiffer penalties for repeat harassers, elevating a third offense under the statute to a felony punishable by a $5,000 fine and up to two years imprisonment. That provision was dropped from the version reported out of the Judiciary Committee later in the week. (Neither Green nor the office of that committee's chair had returned a request for comment as of press time.)

Oddly, the revised bill also narrowed the definition of all forms of computerized harassment, so as to cover only actions committed "via the internet." Harassment carried out on a local intranet, presumably, is subject only to plain old cyber-less harassment statutes.